Trimis v Mina (No 2)

[1999] NSWCA 246

CITATION:	TRIMIS & ANOR v MINA (No 2) [1999] NSWCA 246
FILE NUMBER(S):	CA 40164/98
HEARING DATE(S):	17 March 1999
JUDGMENT DATE:	16 July 1999
PARTIES :	Sofoclis TRIMIS & Anor v Nizik MINA
JUDGMENT OF:	Mason P at 1; Priestley JA at 1; Handley JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 7949/94
LOWER COURT JUDICIAL OFFICER:	George ADCJ

COUNSEL:	TGR Parker (Appellant) M Galvin (Respondent)
SOLICITORS:	Coustas & Co (Appellant) Elias Gates & Associates (Respondent)
CATCHWORDS:	Costs - no matter of principle
DECISION:	Allowed in part

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40164/98
DC 7949/94

MASON P
PRIESTLEY JA
HANDLEY JA

Friday 16 July 1999



SOFOCLIS TRIMIS & ANOR v NAZIH MINA (NO 2)

JUDGMENT

1    THE COURT: Except as to costs, the parties are agreed as to the substance of the orders which should be made in the light of the reasons published on 18 May 1999. The judgment for the respondent (builder) is to be reduced from $50,720.83 inclusive of interest to $44,787.25 inclusive of interest, taking effect on the date judgment was entered in the District Court. 2    The judgment of Mason P records that the appellants failed in their submissions that the contract was repudiated by the builder (pars 42-45); that the builder’s damages for breach of contract were assessed on an erroneous basis (pars 46-50); and that the owners’ cross claim was wrongly dismissed (pars 65-75). 3    They succeeded in overturning the portion of the builder’s verdict referable to five variations because they were not in writing and because the primary judge’s resort to restitutionary principles to sidestep the absence of writing was in error. The total money involved in the five variations was $5,328.93 (with appurtenant interest of $604.65). 4    The appellants accept that they have substantially failed in the proceedings and in the appeal. And they accept that it is fair that they should, in consequence, pay a preponderance of the builder’s costs. They submit that 70% is the appropriate amount, taking into account:

• the failure at trial of the builder’s claim for consequential economic loss (approx $49,000)

• the failure of the builder’s claim for variations totalling approximately $7,000 (some were rejected at trial, the balance were rejected on appeal)

• the respondent’s ultimate success as to less than half of the claim originally propounded

• the fact that the variation claims, small though they were, occupied a substantial and disproportionate amount of the time at the trial.

5    The builder submits that he should get all of the costs relating to the cross claim in the District court and 90% of the costs relating to his claim in the Court of Appeal. He disputes the relevance or cogency of the fact that the variations took up much more time at trial than their ratio to the total claim. And he submits that the defence of the cross claim at trial was burdensome cost-wise because experts had to be briefed about it. 6    In our view it is appropriate to deal with costs compendiously, bearing in mind that the builder was ultimately successful in recovering a substantial verdict. No side appears to have resorted to Calderbank offers or their counterpart under the Rules. The variations issue took up a disproportionate amount of time at trial. But it did not extend the hearing time of the appeal and the submissions on that issue formed a slender part of the written and oral submissions on appeal. Neither side was successful at trial and the owners were substantially unsuccessful on the appeal. The builder should get 75% of his costs overall. 7    The following orders should be made:

1. Appeal allowed in part.

2. The verdict in the respondent’s favour in the sum of $50,720.83 (inclusive of interest to date of judgment) is reduced to $44,787.25 such order to take effect from the date of judgment in the District Court.

3. In lieu of the costs order at trial, order the appellants to pay 75% of the respondent’s total costs in the District Court.

4. Appellants to pay 75% of the costs of the appeal.

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